In November 2021 an amendment to the Employment Relations Act 2000 (the Act) set out the employer’s obligations where, due to having a vaccine mandate, termination of employment is being considered due to an employee not being fully vaccinated.
A new Schedule 3A to the Act places obligations that an employer must follow when dealing with an unvaccinated employee. Failure to comply with these obligations will leave the employer exposed to a personal grievance.
Where an employee performs work that is covered by a vaccine mandate (Government imposed or employer imposed), the first consideration before termination must be on what alternative arrangements could be made to keep the employee in employment. The employer must be able to demonstrate that such alternatives have been considered before termination can apply.
Before you terminate under Schedule 3A, you cannot dismiss the employee until after the date you have specified they must comply (or in the case of Government Mandates, the dates set in those mandates). If you have implemented, in consultation with your staff and their union(s), your own mandate and you have a timeframe in your mandate policy within which staff must comply, you must wait until that date occurs before giving notice of termination.
You should first discuss and seek agreement with non-compliant employees to alternatives to termination. This includes listening to and considering their proposals on reasonable alternative arrangements. These may include working from home, a change in duties (agreed with the employee), taking leave with or without pay for a period of time – particularly if the employee has genuine reasons for waiting for an alternative vaccine to be available.
It would be unreasonable for the employee to expect a long period of time to comply with your directions.
If, despite the above, the employee is still non-compliant by the specified date you can then give them notice of termination. You cannot give them notice before that date.
As soon as you have given notice, this triggers an absolute entitlement to a minimum of four weeks’ paid notice and under the intent of the legislation, this is worked notice and should not be paid out in lieu. The reason for this is that the employee still has the ability within the four-week notice period to receive two doses of the vaccination and therefore retain their employment.
For those employees who are covered by a COVID-19 Public Health Response (Vaccinations) Order 2021, they are now also required to have their booster shot to be considered fully vaccinated. The Order requires these staff to have their booster by a set date or no greater than 183 days from their second vaccination.
This requirement to have booster shots does not apply to Non-Order (i.e. employer imposed) mandates unless this has already been provided for in an agreed mandate policy. If you do not have boosters included in your policy, before seeking to include them you should re-visit your risk assessment of roles requiring a vaccination to ensure you have good grounds for making a booster a requirement. You will also need to consult with your staff and their union(s) as part of updating your mandate policy.
Contact us if you need advice on terminations under Schedule 3A.
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